Water from the Salinas River flows through a hole in a levee next to the Gonzales-River Road bridge in 2011, flooding a field. / File photo/The Salinas Californian

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Row crops stand in flooded in a fields in 2011 on River Road near Chualar River Road. / File photo/The Salinas Californian

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With the wettest months of winter looming, the Salinas River is poised to flood and once again destroy crops planted adjacent to its banks. It’s an ongoing problem that has stirred heated debate and finger-pointing, and there doesn’t seem to be any immediate solution.

For nearly a century growers protected their productive land by clearing the river channel of vegetation, debris and sandbars, thereby increasing the capacity of the river. But it was an uncoordinated effort. Then came the devastating floods of 1995 when 1,100 acres of prime farm land was lost permanently to erosion and an estimated $240 million in agricultural losses were incurred.

Nearly all flood-control levees along the river were destroyed.

Subsequently the Monterey County Water Resources Agency worked with the Army Corps of Engineers to coordinate the Salinas River Channel Maintenance Program, and catastrophic losses were averted. But in 2008 the Army Corps’ authorization ended, and since then no new clearing permits have been issued.

Early next month the Water Resources Agency plans to release an environmental study on the effects of the channel maintenance program. The report is highly anticipated by both farmers and environmentalists, and is likely to instantly trigger even more rancor — regardless of its findings.

That’s the less-than-enviable task the Water Resources Agency — managers of the Salinas Valley Water Project — was given last year when the state Regional Water Quality Control Board refused to sign off on river-clearing work permits until an environmental review was completed. Complicating the matter further is that four or five different agencies must sign off on the EIR, each of which has a different perspective on the problem.

The Water Resources Agency, in an April 2011 memo, indicated that the Channel Maintenance Program was successful in “controlling sandbars and vegetative growth to address channel capacity issues … necessary to reduce the risk of flooding, protect valuable farm resources, enhance food safety and reduce economic losses.”

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But key to the debate today is the Water Resources Agency’s insistence that the program be conducted “in a manner that is compatible with environmental concerns and resources, including the needs of threatened, endangered, and sensitive species.”

Steve Shimek, chief executive of The Otter Project and program manager of Monterey Coastkeeper, has challenged the channel maintenance program every step of the way. He asks how the Water Resources Agency, which allowed bulldozing of the river for a decade, can turn around and issue, as it did in the past, a so-called “negative declaration” — meaning any environmental damage from mechanized clearing and herbicide application would be insignificant.

The key question, however, revolves around the level of environmental harm the public and state agencies are willing to accept to protect farmers from a flooding river.

Environmentalist views

Shimek argues that the river was never meant to be forced into a narrow, fast-water channel, and that its geologic features make it susceptible to flash flooding — from minor flows to huge flows.

He does not believe the land adjacent to the river should be farmed, and if it is, it should be with the understanding that growers are taking the risk of losing crops to flood waters.

“When they get flooded and cry about it, what should be our reaction? My reaction is ‘What were you thinking?’ ” Shimek said.

He cites the practices of the 1700s and 1800s when a farmer on a 100-acre parcel would only plant 20 acres because the other 80 acres would invariably flood. “The river uses those 80 acres — they are the river,” he said.

Shimek said it all comes down to expectations. In Yolo County north of Sacramento, the flood plains of the Sacramento River are farmed, but in some winters and springs the farmers aren’t able to use that land because of flood waters.

“There cannot be the expectation that we can control the river — it’s a false expectation,” he said.

A tale of two rivers

Along the Pajaro River — the border between Monterey and Santa Cruz counties — in March 1995 flooding caused one death and more than $95 million dollars of loss, including $67 million in damage to agricultural fields and $28 million in damage to the community of Pajaro. (That same year, floods caused a total of $240 million in agricultural damage and destroyed nearly 30,000 acres of farmland in the Salinas Valley).

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Fast forward to this past summer when a partnership among the two counties, the city of Watsonville and the Army Corp of Engineers launched the Bench Excavation Project geared toward improving flood protection for the Pajaro Valley. The project when completed will remove 330,000 cubic yards of soil from the river channel (or about 33,000 very large truck loads), which will provide a significant increase in the capacity of the river.

Once completed, the project will allow the river to carry at least 10 percent more water and will lower the water surface of the river by about 1.2 feet along the 7.5 mile stretch.

So the obvious question becomes, why not do the same for the Salinas River?

There are many reasons, chief among them the geographic difference between the two rivers — more precisely, the two valleys. The Pajaro Valley Bench Excavation Project, as the crow flies, is about 11 miles long. The Salinas Valley and its river are roughly 90 miles long. The cost of a major flood control project for the Salinas Valley would be all but prohibitive even with combined resources. The much smaller Pajaro River project will top more than $8 million when all phases are completed.

Another reason lies within part of the name of the Pajaro project — bench. Most rivers have a well-defined main channel, where the water flows most of the time. Then they have “benches” that accommodate flows during high-water stages. They were carved by God, so to speak, not the Army Corp of Engineers. What crews are doing along the Pajaro River is essentially leaving the channel alone and removing vegetation and debris from the benches. That way when the water crests the main channel, it has a fairly unobstructed path to the sea while leaving the levees on the edges of the benches to protect lives, homes and crops.

There are two problems with such an approach to the Salinas River. The first is the geologic formation of the Salinas River. It is a meandering river with historic benches, where they exist, covering a broad swath of land on either side of the main channel.

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Vegetation on the Salinas River benches is maintained in one sense by farmers. The problem is, they call it a crop.

Who owns the river?

In a 2003 Pajaro watershed study conducted by California State University, Monterey Bay, lead author Robert R. Curry, Ph.D, noted that there never has been a continuous, historic “main channel” of the Pajaro River. It, too, meandered and shifted and pretty much did what it wanted — up until World War II when the Army Corps of Engineers was asked to provide flood protection for residents and farmland. So the Corps channeled the river. (It still wants to meander, much to the chagrin of water officials involved in the project.)

“(The) state of California had always assumed that the Corps had responsibility for 100-year-flood protection for the entire Pajaro Valley,” reads a section of the CSUMB study. Keep in mind, the authorization to channel the river was given to the Corps in the 1940s. It is highly unlikely that such a move could happen now with the advent of federal and state legislation prohibiting what would be considered today to be heavy-handed human interference with the river’s natural state.

So in a sense, the authority was grandfathered in, making the Corps the “owners” of the river channel.

Wayne Gularte, a grower of row crops in Chualar who lost 10 acres to flood last year, wonders why the same can’t be done on the Salinas River.

“That seems like a very workable solution,” Gularte said. “Why can’t we do the same for the Salinas River?”

One reason the approach to the Pajaro River likely wouldn’t work is because the Salinas River’s historic “benches” are now planted with many millions of dollars worth of row crops. And why not? The growers not only own the land up to the main channel, they also own the land under the river. The Salinas River flows atop private property.

Relics of land grants

California water law is a web of complexities, even for the lawyers and judges who adjudicate conflicts. But the overarching law of the land that allows the ground under bodies of water to be privately owned isn’t even part of U.S. law. It harks back to Sept. 9, 1850, the day when California became a part of the United States.

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Much of California was divided into Spanish land grants, and when the new government took over, it was decided that that unless the state “asserted interest” in specific lands, the landowners would be bound by the original grant agreements, said Sheri Pemberton, a spokeswoman for the Californian Lands Commission. Put another way, “based on international law, the conquering nation was bound to respect private titles created by predecessor nations,” according to the book, “The Basics of Land Title.” Those agreements have been affirmed by three Supreme Court rulings in 1865, 1889 and 1939.

Pemberton said it pretty much boils down to courts upholding the land rights provided at the point of statehood. Those rights allow ownership of the land up to and under the Salinas River.

“There is something like 4 million acres of land under waterways that the state did not assert an interest in at that time, so they cannot assert it now,” she said.

Adding to the uniqueness of the Salinas River, a person could get in a rowboat downstream from Nacimiento Dam and, with a couple of exceptions, row all the way to Salinas without being able to get out of the boat for fear of trespassing on private property.

“You just stay in the boat,” Pemberton said.

Some options, all opposed by someone

In its planning of the channel maintenance EIR, water agency staff outlined a proposed project, which would include removing both native and non-native vegetation — the latter with the use of herbicides. It also calls for bulldozing sediment on the sides of the channel, below the river bank but only to dry portions of the bed. Even the language is controversial. Many farmers insist they do not “bulldoze” the river, but in its April 2011 memo the water agency defines “mechanized equipment” as mowing, disking, or using an excavator, bulldozer, backhoe or other equipment.

Another option, by far Shimek’s favorite, is dubbed “No Project,” and means exactly that. No clearing would be conducted, vegetation would continue to grow and choke the main channels, and flooding on adjacent parcels would be inevitable. A third option would be to attack only the non-native brush with herbicides and mulching, thereby thinning the vegetation. The herbicide of choice, AquaMaster, is approved by the U.S. Environmental Protection Agency.

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But environmentalists shudder at that thought, and remind folks that chemicals like DDT and Agent Orange were also considered safe when they came into use in the 1950s and 1960s. The result was that many species of birds were poisoned to the point of extinction because of the damage to their reproductive systems from DDT — an unforeseen consequence.

Finally, there is a plan for new levee construction, which would raise existing levees and build new ones where needed. The problem with that solution is that farmers would likely jump all over it because it would include levees “on the outside edge of the riparian habitat,” which means many acres of farmland would be inside the levees.

Then there is the daddy of all options, one the water agency hasn’t put forward. Paul Robbins, executive director of the Monterey County Resource Conservation District, a federal agency, noted that in some cases the government has purchased flood easements within the flood plain. In effect, these easements would pay farmers to let their land flood.

“If you are ranching on rangeland, you would just put your cows back on that land after the flood subsided,” Robbins said. “But if you are growing vegetables, you’re out of business.”

Crops touched by flood waters cannot go to market for fear of transmitting pathogens picked up from wild animal feces and other pollutants (See microbes story).

“It’s all very conceptual,” Robbins said. “Just talking about it gets people upset.”

Unfortunately, upsetting some, if not all, of the players involved in the debate is the likely outcome of the EIR when it is released next month. It may come down to compromises.